Ontario will not appeal a judge’s decision to abandon a charge of first-degree murder against Adam Capay, the 26-year-old from Lac Seul First Nation who spent more than 1,600 days in solitary confinement before a public furor over his plight forced officials to send him to a secure hospital.
In deciding against an appeal, the province is consenting to a scathing ruling from Justice John Fregeau that set Mr. Capay free last month and faulted the ministry of corrections for allowing a term of solitary that was "prolonged, egregious and intolerable.”
In particular, he found that the jail’s procedure for reviewing Mr. Capay’s segregation was “pro forma, perfunctory and meaningless” and violated protections against arbitrary detention in the Charter of Rights and Freedoms. One witness testified that reviews of Mr. Capay’s well-being were so sporadic that it was as if he had “disappeared.”
Justice Fregeau’s full, 126-page ruling had been covered by a publication ban pending the expiration of the appeal period. With the Crown’s decision to give up the case, the ban no longer applies to the judgment or any other documents entered in court in connection with the case, many of which capture Mr. Capay’s life before, during and after his grueling solitary stint.
Those records show he logged a total of 1,647 days in solitary confinement – 11 more days than previously reported – until intense public, legal and political pressure forced officials to transfer him to a correctional health facility and mount a legislative overhaul of the provincial corrections system.
The court records show Mr. Capay grew up in Lac Seul First Nation, about 400 kilometres northwest of Thunder Bay, a long way from the corridors of power that would eventually echo with his name. He was born in 1992 to a family with severe alcohol dependency issues that seemed rooted in residential school attendance, the court records show. Substance abuse, violence and sexual abuse were features of Mr. Capay’s upbringing.
When Mr. Capay was 10, his father put a loaded gun to his head and asked Mr. Capay to pull the trigger. By then, Mr. Capay had already been drinking alcohol, smoking marijuana and doing inhalants for several years. He declined his father’s request, but nightmares of the encounter persist.
While his parents eventually kicked their addictions, Mr. Capay’s difficulties endured. He made it to Grade 7 or 8 before assaults on a teacher and a police officer brought an end to his formal education. His employment history shows two weeks of construction work at the age of 18, after which he was fired for intoxication.
By April, 2012, he was serving a five-month sentence at Thunder Bay Correctional Centre for bashing up his mom’s automobile with a baseball bat and breaching court-imposed conditions stemming from a previous assault charge.
About a month into his sentence, Mr. Capay told correctional staff “he thinks about killing people,” according to court filings. By June, staff noted that he was displaying “odd behaviour” and identifying himself by an alias.
On June 3, 2012, a month and a half before his 20th birthday, he donned an orange rag on his head and told another inmate in the prison dormitory: “I’m on a mission, watch this.” He snuck towards Sherman Quisses, who was in bed, and stabbed the 35-year-old inmate in the neck with a pen. The wounds were fatal.
“I’m Carlos Cardone,” one inmate heard him say afterwards, according to court records. Another prisoner said it sounded more like “Don Corleone.”
Mr. Capay’s lawyers conceded in their application for a stay of the charge that their client stabbed Mr. Quisses. But they argued that his mental state at the time will never be known because staff failed to do reviews of his detention or send him to psychiatric assessment and his memory of the incident was impaired by his time in segregation.
Within a day, Mr. Capay was transferred to Block 10, a notorious isolation cell at the nearby Thunder Bay Jail. It had acrylic glass surroundings and around-the-clock lighting. The toilet’s flush mechanism could be operated only from outside the cell, forcing Block 10 prisoners to yell for a flush, often in vain due to the muffling effect of the glass.
One expert witness, Kelly Hannah-Moffat, a corrections scholar at the University of Toronto who has toured prisons around the world, testified that conditions at Thunder Bay Jail were among the worst she had ever seen. “It’s filthy, it’s disgusting, it’s of ill repair, it’s dirty," she said.
John Bradford, a forensic psychiatrist hired to assess Mr. Capay and review his mental-health file in 2017, said the behaviour suggested someone possibly experiencing a drug-induced psychosis.
Mr. Capay did not receive a forensic psychiatric assessment or any mental-health treatment for his first two months in isolation. A psychiatrist recommended an assessment on Aug. 12, 2012, but none was done.
Prison staff ensured his first few months of segregation involved complete social and physical isolation, noting on his file, “*DO NOT ENTER INTO DISCUSSIONS WITH THIS OFFENDER*.”
The result, in the words of Dr. Bradford, who has assessed the likes of convicted killers Russell Williams and Paul Bernardo, was “almost total isolation.”
That period of extreme seclusion coincided with violent, sadistic fantasies. Mr. Capay expressed thoughts of harming correctional staff, bald men and animals. Disclosing these delusions to staff created a vicious circle. The hallucinations and fantasies were “a significant part of the rationale for continuing Mr. Capay’s detention in segregation,” Dr. Bradford wrote, but they were also “likely due in significant measure to the effects of segregation itself.”
The violent thoughts abated by December, 2013, but the institution used them to justify his segregation for another three years.
Errors and omissions
At the time, nothing was controversial about the initial decision to lock him in solitary confinement. Correctional officers have authority to segregate a prisoner if they believe he could harm himself or others. On average, 472 provincial inmates faced segregation every day in 2012.
But in the Capay case, the institution started racking up serious errors and omissions that led directly to his release without trial.
The Supreme Court long ago ruled that people keep some residual rights and liberties after the courts send them to prison. If those residual rights are further reduced by being placed in segregation, the state must hold regular review hearings of the decision.
In Ontario, the law requires segregation review hearings to be held at the institutional level every five days and the regional level every 30 days. The regional office has authority over local prisons.
All this oversight should have generated a mountain of paperwork during Mr. Capay’s isolation – 12 institutional reviews and one regional review during the first two months of intense seclusion alone.
Instead, there is nothing to show for that first period – no record of any review hearings.
His first institutional segregation review took place on Aug. 29, nearly three months into his spell in solitary confinement, according to court documents.
He had reviews on Sept. 3 and Sept. 8, followed by five months and 13 days without a review. During this time, he should have had 33 five-day reviews and 10 30-day reviews.
The omission did not raise any red flags until Feb. 21 of the next year, when Deb McKay, deputy of operations at the Thunder Bay Jail, reviewed Mr. Capay’s file. She realized much of the documentation to support his continuing segregation was non-existent, and a sent an e-mail to regional director Daniel Smith, saying Mr. Capay’s reviews “may have slipped through the cracks.”
The pattern of sporadic reviews would continue for the duration of Mr. Capay’s incarceration.
“There’s, you know, people filing out forms,” testified Michael Jackson, Canadian corrections researcher and professor emeritus at the University of British Columbia. “They’re checking boxes, but it’s as if Adam Capay’s disappeared.”
Testimony showed the regional office was extremely reluctant to override institutional segregation decisions. One deputy director told the court it was not his job to overrule institutional decisions.
“It is obvious that the segregation review process in the case of the accused was meaningless at the institutional and regional levels,” Justice Fregeau ruled.
In all, Mr. Capay spent 1,358 of his 1,647 segregation days in Thunder Bay Jail cells that featured Plexiglas and constant lighting. Opportunities to seek natural light outdoors were limited. The outdoor yard for segregated inmates is a small fenced-in area with a roof and fluorescent lighting overhead. It offers no view of the sky. He went there 108 times during his stay in solitary.
As 2015 turned to 2016, his deterioration accelerated. He stabbed a pencil through his right cheek, slashed one of his arms with a razor blade and began hallucinating.
Documents show he was seen by a psychiatrist and prescribed anti-depressants, sedatives and pain medication during this time. There is no indication he was ever sent to a hospital or mental-health centre.
On Sept. 22, 2016, he pushed a pencil through his foreskin and banged his head against his cell wall until he bled. He was placed in a restraint chair for the night.
‘I’m only 23’
Fifteen days later, Ontario’s chief human-rights commissioner, Renu Mandhane, arrived to tour the jail and asked to see Mr. Capay at the urging of correctional officer Mike Lundy.
Mr. Capay apologized to her for his failing capacity for speech and inability to recall dates. The constant lighting, he said, made it difficult to distinguish one day from the next. She eventually went to the ministry and the media with grave concerns about Mr. Capay’s condition.
On Oct. 18, The Globe and Mail published the first of several detailed stories on Mr. Capay showing that his plight had been acknowledged and ignored at the highest reaches of the Liberal government.
Within days, he was moved to a new cell with dimmable lights and given mental-health services and Indigenous supports.
The minister of corrections, David Orazietti, vowed to keep mentally ill inmates out of solitary, and hired federal prisons ombudsman Howard Sapers to advise the ministry as it drafted new rights-oriented prison legislation.
It is unclear if Mr. Capay was aware of the political turmoil his story created at Queen’s Park. For a brief time, his thoughts became more positive. On Nov. 5, 2016, he told staff: “I’m only 23, I have my whole life ahead of me.”
But Dec. 5, 2016, brought another step backwards. He pushed a pencil through his ribs, documents state. With the scrutiny of the country now focused upon Ontario prison administration, the decision to transfer him to a forensic mental-health facility came within hours.
His term in solitary was finally up, 1,647 days after it began.
Mr. Orazietti resigned a few days later, a decision he said was not tied to the Capay controversy.
The attention drew Toronto lawyers Marlys Edwardh, Adriel Weaver and Karen Symes to the case. They applied for a stay of proceedings in the murder case, arguing the state had violated Charter rights protecting against unjust deprivation of liberty, arbitrary detention, cruel and unusual punishment and discrimination based on race and mental disability.
The stay application prolonged the case for another two years, as the defence waited for the ministry to provide minute-by-minute records of Mr. Capay’s movements at Thunder Bay Jail.
Mr. Capay showed up in court to hear the judge’s decision on Jan. 28, 2019, wearing a black hoodie and a look of apprehension. He had spent the previous two years at three different correctional treatment centres and a jail in Kenora, Ont.
Justice Fregeau read his decision for nearly two hours. Much of it excoriated the ministry of correctional services for its conduct in and out of court. “[W]ith the exception of Mr. Lundy, I did not observe a single note of contrition or regret during the testimony of the correctional witnesses who were largely responsible for detaining the accused in segregation under abhorrent conditions for four and one-half years,” he said at one point.
Mr. Capay’s lawyers had cited Dr. Bradford’s report in arguing that the seclusion left Mr. Capay with significant memory loss and other cognitive impairments, preventing him from recalling the stabbing, responding to evidence called by the Crown or properly guiding his lawyers.
“In my opinion,” Justice Fregeau continued, “this is the clearest of cases in which no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights. For all of the reasons above, the charge of first-degree murder against the accused, Adam Capay, is stayed.”
With that, Mr. Capay bent forward in the prisoner’s box, placing his head in his hands. The ordeal was over. He had reappeared.